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Same-Sex Marriage Faces Military Limits

Kristen Kavanaugh, a former Marine, may rejoin the military. If she and her partner received the same benefits as a heterosexual couple, it would make a difference, she said.Credit
Sandy Huffaker for The New York Times

With the military’s ban on openly gay troops expected to end this fall, advocates for gay and lesbian service members are already looking ahead to the next battle: winning equal benefits for same-sex married couples.

Under current law, particularly the Defense of Marriage Act, the Pentagon is prohibited from giving federally financed benefits to same-sex married couples. In the military, those benefits include base housing and allowances for off-base housing, health insurance, certain death benefits, legal counseling and access to base commissaries and other stores.

No one knows how many same-sex married couples are currently in the military, since existing policy, known as “don’t ask, don’t tell,” prohibits openly gay people from serving. The number, however, is thought to be small, perhaps in the hundreds.

But with the final repeal of “don’t ask, don’t tell” in the coming months — and with the recent legalization of same-sex marriage in New York and the possibility of other states’ following suit — many advocates expect the number of gay and lesbian married couples in the military to rise significantly.

“What’s pretty obvious is that there is going to be a collision soon between an open and integrated military and a federal law that prevents what I consider unit cohesion,” said Rick Jacobs, chairman and founder of the Courage Campaign, an advocacy group for gay men and lesbians in the military. “You will have different people treated very differently.”

But Elaine Donnelly, whose policy organization, the Center for Military Readiness, is opposed to ending the ban on openly gay troops, said extending equal benefits to same-sex couples would be not just costly but also offensive to some heterosexual couples. “These are things Congress should have considered last year before they voted to repeal the policy,” said Ms. Donnelly, the center’s president.

Eileen Lainez, a spokeswoman for the Pentagon, said the department was studying whether smaller benefits, like free legal services, could be extended to same-sex spouses. But she said there would be “no change” in eligibility for major benefits like housing and health care when “don’t ask, don’t tell” goes away.

“The Defense of Marriage Act and the existing definition of ‘dependent’ in some laws prohibit extension of many military benefits to same-sex couples,” she said.

With Republicans in control of the House of Representatives, advocates for gays in the military said the courts might be their best venue for equalizing benefits. “It may take some time,” said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, which advocates for gay and lesbian troops.

Unequal benefits for same-sex married couples is one of several thorny issues facing the Pentagon as it enters the final phase of repealing “don’t ask, don’t tell,” which has been policy since 1993. Among other issues likely to arise in the coming months are how the Pentagon will handle harassment complaints from gay or lesbian troops and whether it will allow openly transgender people to serve.

For months, the armed services have been using PowerPoint presentations to prepare troops at all levels for dealing with openly gay colleagues.

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Ms. Kavanaugh said she served in the Marine Corps for five years before voluntarily deciding to leave the military because she no longer wanted to lie about being a lesbian.

One scenario in a Marine Corps training presentation, for instance, asks how an officer should respond if he or she spots a gay military couple in civilian clothes kissing in the food court of a mall. (The answer: a “sexual-orientation neutral” response that treats the gay couple the same as a heterosexual couple.)

Most troops have now received such training, and last week the chiefs of the armed services sent progress reports on repeal to Defense Secretary Leon E. Panetta. He and President Obama, as well as Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, will use those assessments to determine whether the military is able to repeal the ban without losing its effectiveness. Once that certification is sent to Congress, the ban will be lifted after 60 days.

One currently serving Army officer who married her same-sex partner in Massachusetts said the end of the ban would provide a huge emotional release, allowing her for the first time to talk to her fellow soldiers about her wife and two children.

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But she also considers it unfair that her wife will be unable to receive health or dental care on her base, buy life insurance subsidized by the military or shop at the base commissary, grocery store and gas station, where goods are typically cheaper.

Their family, however, will be eligible for base housing because they have dependent children. But same-sex married couples without children will probably not get such housing, experts say.

“I want to be like everyone else,” the officer said. “I don’t think my family should be entitled to anything less than the people I’ve served with here and overseas.”

Mr. Sarvis said that in addition to the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage, another law governing military benefits also contains language that prohibits extension of benefits to same-sex spouses. That means that even if the Defense of Marriage Act, which is being challenged in federal courts, is struck down, Congress will still have to amend another law to allow equal benefits for same-sex married couples.

That process, he said, could take years. But he predicted that military commanders would support the change.

“I don’t think that commanders are going to be comfortable with this inequity,” he said. “Commanders historically have taken great pride that all of their service members are treated the same with respect to basic pay and benefits.”

The Obama administration has said it will not defend the Defense of Marriage Act in court and issued a brief recently saying it considered the law unconstitutional.

Kristen Kavanaugh, a 2002 graduate of the Naval Academy, said she served in the Marine Corps for five years before voluntarily deciding to leave the military because she no longer wanted to lie about being a lesbian. She received an honorable discharge and is now attending graduate school at the University of Southern California.

Ms. Kavanaugh, 31, said she was considering rejoining the military so that she could counsel troops with post-traumatic stress disorder and other deployment-related problems. But she is also planning on marrying her partner — and the ability to receive equal benefits may determine whether she joins up again.

“I’m 75 percent there for joining,” she said. “It will come down to the benefit issues. That’s important to my partner.”

Correction: July 16, 2011

An earlier version of this article misspelled the first name of the spokeswoman for the Pentagon. She is Eileen Lainez, not Elaine.

A version of this article appears in print on July 17, 2011, on Page A15 of the New York edition with the headline: Same-Sex Marriage Faces Military Limits. Order Reprints|Today's Paper|Subscribe